AIPPI Report: Go ahead, make my day! Mr Justice Birss encourages IP litgants to use the new Shorter and Flexible Trial Schemes

The Patents Court may be even
busier when a rush of litigants enter into the
Short Trial Scheme.  But some judges
like being busy bees...

Yesterday evening, the AmeriKat could be seen spiritedly speeding up Farringdon Street to to the London offices of Hogan Lovells who were hosting the third of this year's AIPPI UK events.  The event's star attraction was Mr Justice Birss who spoke enthusiastically (and entertainingly) about the new Shorter and Flexible Trials Schemes.  In his sales pitch, Mr Justice Birss outlined the genesis and structure of the two schemes, emphasizing the attraction for litigants to benefit from IPEC-style procedures in big ticket litigation.  With thanks to Danielle Lawson (Freshfields LLP) for filling in readers on the evening:

"After an enthusiastic introduction, Mr Justice Birss explained that the Shorter and Flexible Trial Schemes are being run as a pilot, and therefore are initially time limited. They can be used in business cases issued between 1 October 2015 and 30 September 2017. “Business case” would include almost any IP case. The judge invited feedback on the schemes via the Working Group that set them up and will be monitoring them.

The two Schemes are set out in Civil Procedure Rules (CPR) Practice Direction (PD) 51N. They stem from different philosophies of case management. The Flexible Trials Scheme encourage increased party control; the Shorter Trials Scheme increases court control.

Shorter Trials Scheme

The shorter trials scheme (STS) owes a great deal to IPEC procedures but is available for parties and claims of all sizes. IPEC has proven very popular and anecdotally there has been a call for IPEC procedures to be more widely available in the court system. It is early days for the STS - so far only three or four cases have used the procedure.

Under the STS, hearings will be limited to four days including reading time, and judgment will be given six weeks of trial and within a year of issuing proceedings. There is a streamlined pre-action protocol, and the case is docketed i.e. the same judge hears the CMC and trial and deals with any applications (unless unavailable in the case of urgency). Disclosure and oral evidence will be limited, and cross-examination strictly controlled and limited to principal parts of the case. 

Claimants are free to specify that they wish to enter the STS when they issue a claim. The rules are clear that Defendants may apply for transfer out of the STS. A recent judgment by Birss J establishes that applications can also be made to transfer into the Scheme (Family Mosaic v Peer Real Estate [2016] EWHC 257 (Ch)). Unlike applications for expedition, there is no requirement to justify opting in to the scheme.

The working group (a group of judges monitoring the schemes) has decide that it would not be sensible or fair for costs budgeting to apply to the STS, which will instead follow IPEC’s method of summary assessment but without a costs cap.

Responding to questions afterwards, the judge confirmed that using the STS does not affect the court fees applicable to a case or the judges who would hear it.  As regards applications, he considered parties might make all the usual applications including for example expedition (i.e. you can expedite an already expedited procedure in the STS0, and that the date for trial set at the CMC would be a fixed date, rather than a window within which the trial date would float ["Finally, out-of-town clients can fix their travel plans earlier!"exclaims the AmeriKat]. 

Flexible Trials Scheme

The Flexible Trials Scheme (FTS) is an alternative to the STS. So far, it appears not to have been used. It allows parties to agree directions which the court will adopt provided they are reasonable. The FTS is based on the consensual approach adopted in arbitration. This might include limited disclosure and oral evidence and early identification of issues using written evidence. Responding to questions afterwards, the judge commented that the FTS might be used, for instance, to introduce Markman-type hearings or to define preliminary issues, or to provide to docketing – although not to a specific named choice of judge."

In closing, Mr Justice Birss also flagged other recent developments including the online filing system (which was noted to still be underused), Lord Justice Briggs' review of civil justice published in December 2015 (see in particular his comments on reducing the appellate court backlog by getting the High Court judges to do more appeal work), an online court for smaller cases and the proposal for specialist regional courts (a branch of the IPEC in Manchester or Leeds, for example).

One point that the AmeriKat will be interested in is as how paragraph 2.60 of PD 51N will be interpreted.  That provision states that "the Court of Appeal will seek to take into account the fact that a case was in the Shorter Trials Scheme..."  Although Mr Justice Birss did not opine on how it would be interpreted, the AmeriKat wonders whether anyone would argue that this means that the appellate court's general deference to a trial judge's findings of fact on the evidence should be watered down.  This is because, unlike in standard track procedure where the trial judge benefits from reams of evidence and cross-examination before him at trial, evidence and cross-examination is tightly controlled in the STS.  Therefore, would or should the appellate court perhaps plunge into the evidence more than normal?  Or, alternatively, will it mean not much of anything and is just a flag to the appellate judges that they should not read anything in the fact that the entire case was not put to a witness during the limited cross-examination when reading the transcripts?

In any event, the AmeriKat is excited about these schemes as it provides another tool in an English IP litigator's toolkit to adapt the best of English civil procedure in a way that can benefit the parties in terms of time and cost.  Last week, Eibhlin Vardy (A&O) reported on Celltrion v Biogen where the Patents Court is already implementing measures to ensure cases are done and dusted in a year (see Patents Court Practice Statement of 7 December 2015).  The STS and FTS therefore represent a further evolution in the English courts to increase the commercial attractiveness and competitiveness of the English litigation system, rivaling perhaps the UPC.